C.D.G v J.B
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,MacMenamin J.,Finlay Geoghegan J. |
| Judgment Date | 01 November 2018 |
| Neutral Citation | [2018] IESCDET 161 |
| Court | Supreme Court |
| Date | 01 November 2018 |
[2018] IESCDET 161
THE SUPREME COURT
DETERMINATION
Clarke C.J.
MacMenamin J.
Finlay Geoghegan J.
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 1980
AND IN THE MATTER OF COUNCIL REGULATION 2201/2003
IN THE MATTER OF E.G. (A MINOR)
| COURT: Court of Appeal |
| DATE OF ORDERs: 9 October 2018 and 25 October 2018 |
| DATE OF PERFECTION OF ORDER: 9 October 2018 and 25 October 2018 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 25 October 2018 AND WAS IN TIME. |
The applicant (the respondent in the title hereof) is the mother of the child the subject of these proceedings. She seeks leave to appeal to this Court from orders of the Court of Appeal made on 9 October 2018 (perfected on 9 October 2018 and 25 October 2018). The substantive order is that of 9 October 2018, which dismissed the appeal from an order of the High Court directing the return of the child, Oscar (not his real name), to the jurisdiction of the courts of the Kingdom of Sweden, for the reasons set out in a judgment delivered by Whelan J. (Birmingham P. and Edwards J. concurring) on 3 October 2018. The order of 9 October 2018 fixed 26 October 2018 as the day by which Oscar should be returned to Sweden. The order of 25 October 2018 refused an application for a stay on the earlier order and fixed 3 November 2018 as the date for return with liberty to apply to the Court of Appeal in the interim.
As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court
The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Cooper (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The factual background to this dispute is fully set out in the judgments of the High Court (Ní Raifeartaigh J.) delivered on 23 July 2018 and that of the Court of Appeal both of which are published in redacted form: [2018] IEHC 453 and [2018] IECA 323. In summary and relevant to this determination, they are recounted here. The child was born in Ireland in November 2012. The respondent in these proceedings is a Swedish national and the father of the child. The applicant, the mother of the child, is Irish. The parties married in 2013 and in June 2015, they moved to Sweden. Unfortunately, their relationship appears to have broken down shortly thereafter and they separated in November 2015. The mother made allegations against the father of sexual abuse of the child. In 2016, the mother commenced divorce proceedings. There were also proceedings concerning custody and access of the child before the Swedish courts and investigations by Swedish authorities, including police authorities of the allegations of sexual abuse. Following a hearing at which the father and mother were legally represented, the Stockholm District Court made an order on 2 February 2018 granting the father custody of the child and the mother access.
On 3 February 2018, the mother removed the child from Sweden to Ireland. The mother did not appeal the Stockholm District Court order of 2 February 2018.
On 18 February 2018, the father completed a request for the return of the child with the Swedish Central Authority. These proceedings were commenced in the High Court on his behalf on 16 April 2018.
On 2 May 2018, the mother was arrested in Ireland pursuant to a European Arrest Warrant issued at the request of the Swedish authorities on 27 February 2018. On 3 May 2018, the mother was released on bail and those proceedings remain before the High Court with the next hearing on 2 November 2018. Those proceedings are separate and distinct proceedings and there is no application to this Court in respect of those proceedings. However, their existence is relevant to the application for the return of the child.
These proceedings were before the High Court for pre-trial case management and directions in accordance with the normal procedures in Hague Convention applications during the months of May and June 2018. On 14 May 2018, the High Court refused an application made by the mother that a child psychologist interview the child and report to the Court; on 11 June 2018 the High Court refused an application by the mother for the appointment of a guardian ad litem for the child but permitted the mother to furnish reports from the Swedish proceedings to an Irish psychologist and in the course of the subsequent hearing permitted the mother call oral evidence from that Irish psychologist. The High Court's reasoning for those decisions are set out at paras. 5 to 7 of the High Court judgment. The mother did not appeal any of those pre-trial decisions.
Following a High Court hearing over several days, a full written judgment was delivered on 23 July 2018 concluding that there should be an order the return of the...
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